END USER LICENSE AGREEMENT

FLUTTER CARE INC.

 

Last modified: September 6, 2021

 

Please read this End User License Agreement carefully. This End User License Agreement (“Agreement”) is between you (“You”, “Your(s)”) and Flutter Care, Inc. (“Flutter Care”, “we”, “us”, “our(s)”) for the use of our mobile and internet-based services at and through the website https://www.fluttercare.com/ (the “Website”) and through Flutter Care’s mobile application (the "App"). Capitalized terms used in this Agreement shall have the same meanings given to them in Flutter Care’s Terms and Conditions. 

 

YOU ACKNOWLEDGE HAVING READ FLUTTER CARE’S TERMS AND CONDITIONS OF USE AND PRIVACY POLICY AND AGREE THAT THOSE TERMS AND CONDITIONS SHALL FORM PART OF AND ARE HEREBY INCORPORATED INTO THIS AGREEMENT.

Account Registration

To register for Flutter Care’s Website or App, you will be required to authenticate your identity either via Google or another third-party service or via our own secure registration process. When we use third parties for authentication, we choose providers that have robust security and privacy protections

Relationship of Parties

No joint venture, partnership, employment, or agency relationship exists between Flutter Care and you as a result of this Agreement or use of the Website or App.

Use Rights and Restrictions

Subject to the terms of this Agreement, Flutter Care grants to you the non-transferable, non-exclusive right to access and use the Website and App for the sole purpose of tracking fetal growth via the number of fetal kicks recorded by you into the Website or App (the “Services”), subject to the following restrictions: 

 

  1. Your use of the Website or App may not be on behalf of third parties; 

  2. You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Website or App available to any third party; 

  3. You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Website or App or access or use the Website, App, or any materials provided by, created by, or disseminated by Flutter Care in order to build a similar or competitive product or service; 

  4. Your use of the Website and App must not cause undue strain or stress on Flutter Care’s network through excessive API calls or other non-standard use; and 

  5. Your use of the Website and App must comply with the separate Flutter Care Acceptable Use Policy in the Flutter Care Terms and Conditions as updated by Flutter Care from time to time.

 

Fees and Billing

Joining Flutter Care is free, but in the future, we may offer paid subscriptions or other fee-based access plans or features. As well, we may offer per-download fees in addition to the subscription fee model.

 

After you have set up an account on the Website or App, you will be free to make use of all of the pages on the Website or App, document how many kicks you felt your fetus make, document health changes, and sleep changes, among others. 

 

Updates

From time to time, Flutter Care, in its sole discretion, may develop and provide mobile application updates to address bug fixes, errors, and to provide better Services. You agree that Flutter Care has no obligation to continue to issue updates or to continue to provide certain functionalities that may be deleted due to an update. 

 

You shall agree that certain functions of the App may not operate properly if you fail to download and update the App on your mobile device. You also agree that any updates will be considered part of the App and therefore subject to Flutter Care’s Terms and Conditions, Privacy Policy, and this Agreement. 

Term and Termination

 

The Term of this Agreement commences upon your downloading the App or opening any page of the Website on your mobile device or computer. 

 

You may terminate this Agreement at any time by deleting your user account. To delete your account, please contact hello@fluttercare.com

 

Flutter Care may terminate this Agreement at any time without notice if it ceases to support the Website or App, which Flutter Care may do in its sole discretion. Flutter Care reserves the right to suspend, discontinue, update, or otherwise modify the Website and App, and their respective availability to you, at any time without notice. 

 

Your rights under this Agreement will terminate automatically upon violation of this Agreement or Flutter Care’s Terms and Conditions. Upon termination of the Agreement, you shall uninstall the App from your mobile devices and computers, and cease use of the Website and App. 

Third-Party Materials

The App may contain links or otherwise provide access to third-party content (“Third-Party Content”). You acknowledge and agree that Flutter Care does not investigate, monitor, represent, or endorse the Third-Party Content. Access and use of the Third-Party Content is solely at your own risk. Flutter Care and its affiliates shall have no liability to you arising out of or in connection with your access and use of Third-Party Content. Flutter Care does not provide any representation or warranty, whether express or implied, including, without limitation, implied warranties of merchantability or fitness for a particular purpose, or any representation or warranty regarding the accuracy, quality, reliability, features, completeness, legality, or any other quality thereof of the Third-Party Content.  

Non-Warranties

YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND APP ARE PROVIDED ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS, AND YOUR USE OR RELIANCE ON THE WEBSITE OR APP AND ANY THIRD-PARTY CONTENT ACCESSED THROUGH THE WEBSITE OR APP IS AT YOUR SOLE RISK AND DISCRETION. FLUTTER CARE AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED BY THE WEBSITE OR THE APP, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL FLUTTER CARE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES ARISING OUT OF YOUR USE OF THE WEBSITE OR APP, OR USE OF THE INFORMATION PROVIDED BY THE WEBSITE OR APP. FLUTTER CARE AND ITS AFFILIATES PROVIDE NO WARRANTY OR REPRESENTATION OF ANY KIND THAT THE WEBSITE OR APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE WITH OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS WILL BE OR CAN BE CORRECTED.

 

Limited Liability

Please refer to Flutter Care’s Terms and Conditions of Use for details on our limitation of liability.

 

IN NO EVENT WILL FLUTTER CARE, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, OR EMPLOYEES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY.

Indemnification

You shall indemnify, defend, and hold harmless Flutter Care, its affiliates, and each of their respective officers, directors, shareholders, employees, agents, successors, and assigns, from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, proceedings, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable fees and attorneys and other professional advisors, arising out of or in connection with the following: 

 

  • Your access or use of the Website or App or Third-Party Content;

  • Your breach of this Agreement;

  • Your violation of law;

  • Your negligence or willful misconduct; or,

  • Your violation of a third party’s rights, including but not limited to the infringement by you of any copyright, trademark, patent, trade secret, or other intellectual property rights, or misappropriation of any intellectual property right. 

 

The above obligations survive the termination of this Agreement. 

General Provisions

Governing Law

 

This Agreement shall be governed by the laws of Canada without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined in the judicial district of British Columbia, Canada.

 

Severability

 

If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

 

Waiver

 

The failure of either you or Flutter Care to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

 

Invalidity; Waivers

 

If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.

 

Modification or Amendment

 

Flutter Care may, from time to time, modify or amend the terms of this Agreement. You will be deemed to have agreed to any changes, modifications, or amendments made if you continue to use the Website or App following the date on which those changes, modifications, or amendments were made. 

 

Assignment

 

You shall not assign this Agreement or any rights or obligations herein without the prior written consent of Flutter Care. Any attempted assignment will be in violation of this provision and shall be null, void, and have no force or effect. 

 

Entire Agreement

 

This Agreement, Flutter Care’s Terms and Conditions of Use and Privacy Policy constitute the entire agreement between you and Flutter Care with respect to the use of the Website or App, and supersedes all prior or contemporaneous understandings or agreements with regard to the use of the Website or App.